A Lawyer’s Duties When Taking Instructions For A Will
Case law imposes an obligation on a lawyer to satisfy himself or herself that the testator has capacity, that the testator has knowledge and approval of the contents of the will and that there is no apparent undue influence or fraud. This duty is particularly significant if the prospective testator is elderly or is apparently suffering from an illness or appears to lack capacity.
Lawyers drafting wills should be particularly attentive in matters where the instructions the testator provides for a new will differs substantially from a previous will. There should be no occasion where a lawyer should prepare a will without receiving direct instructions from the testator.
Lawyers drafting wills should make full docketed entries or notes in regards to all the details of the testator’s intentions. Where a testator appears frail or confused, it would be wise to consult a medical doctor to conduct an assessment of the testator’s testamentary capacity. The lawyer should make a record of his or her examinations and findings in the testator’s file.
Lawyers taking instructions for the will must also obtain from the testator, information about the testator’s relatives and persons who have a moral claim on the testator’s estate. It is the lawyer’s duty to determine the nature and extent of the testator’s property, although knowing the value is not necessary.